• August 28, 2012

    by Jeremy Leaming

    Texas lawmakers’ plans to create new voting districts fail the parameters of the Voting Rights Act by discriminating against Latino voters, a federal court ruled today.

    Texas like a number of other states and localities must abide by the Voting Rights Act, which includes a section that requires those jurisdictions to receive preclearance for redistricting plans. The Voting Rights Act applies to states and localities that have a history of discriminating against classes of voters. Texas did not seek administrative preclearance and instead sought approval of the U.S. District Court for the District of Columbia.

    The federal government opposed preclearance for some of Texas’s redistricting plan, but the three-judge panel of the U.S. District Court concluded that none of the state’s redistricting plan “merits preclearance.” (Texas sought to create new voting districts for its congressional delegation and its State House of Representatives as well as for the Texas Senate.)

    In attaining preclearance Texas needed to prove that “its redistricting plans have neither the effect nor the purpose of abridging minority voting rights.” The federal court found that Texas whiffed on that requirement. Texas tried to persuade the federal court that precedent allows the state to use its own method to determine whether its new voting districts would harm minority voters. The federal panel said, the state “is entitled to advocate its preferred methods of measuring minority voting strength, as we address those arguments below, but we need not defer to a state’s legal theory on how best to measure minority voters’ ability to elect.”

    After meticulously going through the various plans for the new voting districts, the federal court concluded in State of Texas v. U.S. that Texas failed to prove that its U.S. congressional and State House plans would not undercut Hispanic voters, “and that the U.S .Congressional and State Senate Plans were not enacted with discriminatory purpose.” The state therefore failed to “carry its burden” in showing its proposed voting districts would not “have the purpose or effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group under section 5 of the Voting Rights Act.”

  • January 24, 2012
    Guest Post

    By Daniel P. Tokaji, a law professor at The Ohio State University Moritz College of Law and senior fellow for Election Law @ Moritz.

    Whenever the U.S. Supreme Court decides a case, especially one involving elections, commentators have a tendency to wax eloquently about its importance. But let’s face it, not all Supreme Court decisions are really that important. A case in point Friday’s opinion in Perry v. Perez, regarding Texas’ redistricting plans.
    To be sure, the decision is important to Texans wondering what their congressional and state legislative districts will look like. It also helps clarify a procedural question involving preclearance under Section 5 of the Voting Rights Act of 1965 (“VRA”). But the broader significance of Friday’s per curiam decision is limited. What’s most significant is an issue the Court doesn’t address: whether Section 5 is constitutional. That’s the 800 pound gorilla which the justices (with the noteworthy exception of Justice Thomas) avoid mentioning – but will probably come before them in the not-too-distant future.
    A bit of context is useful. Every state must redraw its congressional and state legislative maps at the start of each decade to account for population shifts. Section 5 of the VRA requires some jurisdictions to obtain “preclearance” of voting changes – including redistricting plans – before they take effect. As originally enacted, Section 5 covered Southern states that excluded African Americans from voting. Coverage was later expanded to include states with a history of excluding Latinos and other groups from fully participating in the electoral process. Texas is among the states now covered by Section 5, which was reauthorized and extended for another 25 years in 2006. To obtain preclearance, covered jurisdictions must show that their proposed changes don’t have a discriminatory purpose or retrogressive effect on minority voters.
    At issue in Perry v. Perez is what should happen when a state legislature has drawn new districts, but no preclearance decision has yet been made. After the 2010 Census, the Texas legislature redrew its congressional and state legislative lines. As required by Section 5, the state then requested preclearance of the legislature’s plan, filing suit in the federal district court in Washington, D.C. That court denied Texas’ motion for summary judgment, but hasn’t yet ruled on whether preclearance should be granted. Meanwhile, separate lawsuits were filed in another federal court, alleging that the redistricting plans violate the U.S. Constitution and another section of the VRA. (You can find court filings from the cases here and here.)
    Here’s the problem: Under Section 5, the 2011 Texas redistricting plans can’t take effect until they’ve been precleared. But the old districting plan, the one in effect through 2010, can’t be used either – that would violate the one person, one vote rule due to population shifts of the last decade. The lower court was therefore left with no choice but to draw its own map. That map departed from the legislatively-drawn map in significant respects, even though the court didn’t find a likelihood that plaintiffs would prevail in their legal challenges to it. Texas argued that the court didn’t show enough deference to the un-precleared plans drawn by the state legislature.
  • January 20, 2012

    By Nicole Flatow

    The U.S. Supreme Court issued its much-anticipated decision this morning on Texas’s redistricting plan.

    In a unanimous unsigned opinion, the court rejected election maps devised by a Texas federal district court, asking the lower court to give the map-drawing another try, this time using the original maps drawn by the Texas Legislature as a "starting point."

    As UC Irving Law professor Rick Hasen notes in very early commentary for Election Law Blog, the decision is a win for the Texas, “and will require the drawing of districts much more likely to favor Texas’s interim plan.” The alternative court-drawn map was the result of legal challenges alleging that the map discriminated against minorities.  

    Hasen breaks down the decision:

  • January 10, 2012

    by Jeremy Leaming

    During yesterday’s oral argument before the U.S. Supreme Court over legal challenges to recently redrawn electoral maps, the justices, according to Adam Liptak, appeared “frustrated” as they grappled with how to resolve the matter, which could have a major impact on which party controls the House of Representatives.

    “The justices,” Liptak, The New York Times Supreme Court correspondent, wrote, “in essence must choose between two sets of electoral maps, or at least tell lower courts how to do so. The maps concern the two houses of the Texas Legislature and the House of Representatives.”

    Prompted by the 2010 census – which reported that Texas gained more than 4 million new residents, most of them Latinos – the Republican-controlled Texas Legislature created new electoral maps that public interest groups criticized as failing to reflect minority population growth. Texas, because of its history of discrimination against minority voters, is one of the states that must get “preclearance,” pursuant to Section 5 of the Voting Rights Act, from the Department of Justice or a federal court before any electoral changes can take effect. While Texas officials sought preclearance from a federal court in Washington, a federal court in San Antonio created its own electoral maps as a substitute, which state officials challenged. That three-judge court in San Antonio found that the Legislature’s redistricting sharply reduced the number of minority voting opportunities.

    During oral argument, Justice Sonia Sotomayor suggested the Texas Legislature’s maps could not be used in the state’s primaries, because the maps had not been approved pursuant to Section 5 of the Voting Rights Act.

    “I don’t see how we can give deference to an enacted new map,” she said, “if Section 5 says don’t give it effect until it’s been precleared.”

  • November 23, 2011

    by Jonathan Arogeti

    In fewer than 12 months, millions of Americans nationwide will head to the polls for the 2012 election. With the presidency, 33 Senate seats, all 435 House seats, 11 state governorships, and more than 80 percent of state legislature seats on the ballot, some are considering it to be the among the “most important election[s].”

    But a spate of new restrictive state voting laws threatens to limit voter participation during this election, as documented by a new report from the Brennan Center for Justice. During a forum convened by leading Democratic congressmen, several prominent voting rights experts lamented the abrupt “shift” in momentum away from expanding the franchise. Laws that require photo identification or proof of citizenship, reduce registration opportunities and limit early voting could “make it significantly harder for more than five million eligible voters” to cast ballots in 14 states, the report estimates. And these estimates do not even take into account the potential consequences of proposed measures states that have not yet passed in at least 24 other. Click here for video of the forum.

    “These new laws threaten to silence the voices of those least heard and rarely listened to in this country -- the poor, the elderly, racial and ethnic minorities, the young and the differently abled. Now is the time to act,” said League of Women Voters President Elisabeth MacNamara during the forum.  

    This month has also seen calls by leading Democratic congressmen for a hearing in the House on new state restrictions on voting, and a letter signed by more than 200 House members urges all 50 state secretaries of state to oppose these laws.